Sen. John McCain has officially earned an A in Prof. Bush's course on Tort Reform Tropes, 101. Maybe that's why they're embracing in this photo (source).

The Senator and presumed Republican party Presidential nominee spoke in Rochester, Mich., the other day. (Thanks, Matt at ThinkProgress, for pointing out and analyzing McCain’s statements and his track record on women's rights).

According to the Washington Post:

Although the Michigan audience was largely supportive, cheering McCain's pledge to provide easy health care access for veterans, the meeting started out with a few tough questions. McCain singled out a 14-year-old girl who questioned why he opposes eliminating the statute of limitations on lawsuits over workplace discrimination, arguing it amounted to opposing "equal rights for women."

"If you eliminate the statutes of limitations, and you make it unending, you may be violating the rights of the individuals who are being sued, whether they're a man or a woman," the senator responded. " I don't think you're doing anything to help the rights of women, except maybe help trial lawyers and others in that profession." (My emphasis added)

Haven't we heard this before? It's déja-vu all over again. McCain is using the same tactics Bush used to get elected: when in doubt, blame the trial lawyers.

When faced with a tough question about why people are being denied access to justice, say it's because that's the only way to stop the trial lawyers. Oh, and this will work no matter how inherently flawed, inane, or even insane your argument is at its substance. And for good measure you can sprinkle in some references to "evil in this world" to appeal to peoples' morals, thus creating the inference that all of your political stances are directed at combating that evil.

McCain's appeal to the breached rights of individual employers is strained from the start. First, the law does not create an unending statute of limitations--it clarifies that the statute starts running afresh with every new discriminatory act, such as the issuance of an inequitable paycheck based upon discrimination. Second, the defendant in employment discrimination claims is often a corporation and not an individual.

But even in cases in which the defendant is an individual, what is the right which McCain asserts is being violated? Is it the right not to be sued for discriminating against someone without getting caught within 180 days, even if you then discriminate over and over again after the 180 days are up? Even if it can be more cleverly articulated than this, does McCain really think one can compare the obstruction of some unsavory interest in evading responsibility to the infringement of a highly cherished right not to be victimized by discrimination and economic injustice? That's ridiculous.

So, McCain's not smarter than a twelve year old... but neither was Bush, and he got elected. The rhetoric works.

The "trial lawyers are evil" mantra addresses none of the values McCain touted in his speech to the Michigan audience. He told supporters that "evil still exists in the world" and "assails the great, animating truths we believe to be self-evident -- that all people have a right to life, liberty and the pursuit of happiness -- by subjecting countless human beings to abuse, persecution and even slavery." He observed that the "failure to [confront this evil] affects even those who are complacent with our own blessings and secure in our human rights," and pointed to this country's founding "belief in the inherent dignity of all human life [which] can only be preserved through shared respect and shared responsibility."

Of course that sounds great, but a true belief in those words would require McCain to recognize that discrimination is a form of persecution, and that the court system is a way for individuals to demand the "respect we are morally obliged to pay each other." As someone unlikely to face workplace discrimination, he would nonetheless feel called to confront the evil of discrimination and economic inequity. And his call for "shared respect and shared responsibility" would compel him to acknowledge the assault to human dignitiy that is an unvindicated act of discrimination.

But it appears as though McCain has learned from Bush that matching your professed values with the political decisions you make would be no good at all. After all, It might help the trial lawyers.

On Tuesday, May 6th, a Senate Judiciary subcommittee held a hearing on abusive practices perpetuated by mortgage lenders in the bankruptcy court system. Businesses and consumers often turn to bankruptcy courts as they liquidate their assets in an effort to workout reasonable payment plans with their creditors. For families on the brink of losing their homes, bankruptcy courts play a key role in allowing at-risk homeowners one last chance to keep their homes.

In recent months, however, some mortgage services such as Calabasas, California based Countrywide Financial Corporation have come under intense scrutiny by the Department of Justice for foreclosing homes prematurely only to pile on unnecessary and costly fees on borrowers during bankruptcy proceedings.

But Steve Bailey, the Chief Executive for Loan Administration at Countrywide, disputed those allegations. In a prepared statement before the Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts, he said, “Countrywide is committed to helping our borrowers avoid foreclosure whenever they have a reasonable source of income and a desire to remain in the property.”

He also claimed, “Recent media reports alleging that mortgage servicers are systematically charging excessive fees and using the bankruptcy process to push borrowers into foreclosure or abusing the process more generally are inaccurate.” Bailey attributed any perceived abuses to no more than run of the mill “individual employee errors.”

But Countrywide’s track record of overcharging borrowers facing foreclosure and during bankruptcy proceedings suggests otherwise. One New Jersey couple who owned their home for the last 10 years were served with foreclosure papers by Countrywide and were inexplicably charged expensive flood insurance that they could not afford and did not need. It took months to resolve the error. Meanwhile, she fell behind on her mortgage payments.

In several other cases, the mortgage company has repeatedly been accused by the attorneys of the borrowers and U.S. Trustees in bankruptcy courts of inflating overdue mortgage payments and fabricating documents to bolster their claims and collect more money in bankruptcy court.

Robin and John Atchley’s experience with Countrywide seems to be emblematic of these very same abuses. In 2004, the Atchley’s moved from a mobile home to what Atchley described as her family’s dream home in Waleska, Georgia. After securing a home loan from American Freedom Mortgage her mortgage was sold to Countrywide. During Mrs. Atchley’s grieving period after her sister’s death, she took unpaid leave from her job at the U.S. Postal Service. Soon afterwards, the Atchleys fell behind on their mortgage payments by about three months worth.

Apparently, that was enough for Countrywide to initiate foreclosure proceedings against the Georgia family and create what Atchely called a “tug of war” over her home she said in her testimony. The Atchleys hoped the bankruptcy court would allow her and her husband pay off her debts and keep her house, but, according to Atchley, “to take advantage of our predicament and to profit from our struggle.” At one point, Countrywide alleged that the Atchley’s owed an extra $14,000 on her home loan and $2,250 for other unspecified fees.

Neither of those extra charges were substantiated once they were vigorously challenged by her attorney.

Katherine Porter, a bankruptcy law expert who has studied 1700 bankruptcy cases, told the Subcommittee that the Atchleys suffered an all too common fate. Proter said she found that in bankruptcy cases “mortgage servicers disregard bankruptcy law in more than half” the time.

Mortgage services frequently misapply payments during the bankruptcy case or fail to disclose post-bankruptcy attorneys fees and property inspection or simply not itemized their fees at all to overcharge borrowers. Porter contends that such a pattern of falsifying or withholding documentation demonstrates a deliberate attempt to manipulate a system intended to help those trying to aviod financial ruin.

An unpersuasive defense from Bailey of Countrywide’s treatment of the Atchleys led Senator Chuck Schumer, chairman of the Subcommittee, to conclude “Companies know that the hapless homeowner is too poor, too unsophisticated or too overwhelmed to challenge often blatantly fraudulent demands for payment.”

The Atchleys eventually lost their home and are currently living with other family members until they can save enough money to rent a place of their own.

Okay, that was a bit cheesy.

But my point is that access to the ballot is just as important as access to the courts, and this recent Supreme Court decision may make it more difficult for elderly and poor Indiana voters to vote if they don't have i.d.'s and face significant difficulties obtaining one.

Need proof? Well, the Court didn't get any. Proponents of the Voter ID law claimed the law would prevent voter fraud but could not find one instance of voter fraud; opponents to the law also failed to provide proof that people would be prevented from voting as a result of the law.

But yesterday's primary election fills that evidentiary gap with a human interest story compelling enough to be summed up in two words: elderly nuns. Elderly nuns, for God's--please excuse me--for Goodness sakes, were turned away because they did not have updated identification. From the article:

About 12 Indiana nuns were turned away Tuesday from a polling place by a fellow bride of Christ because they didn't have state or federal identification bearing a photograph.

Sister Julie McGuire said she was forced to turn away her fellow sisters at Saint Mary's Convent in South Bend, across the street from the University of Notre Dame, because they had been told earlier that they would need such an ID to vote.

The nuns, all in their 80s or 90s, didn't get one but came to the precinct anyway.

Regressive court rulings and terrible judicial appointments illuminate the importance of being able to elect the right representatives and pass the right laws. This, obviously, requires that people be able to actually cast their ballot.

For some great opinions on the Supreme Court decision, go here (subscription may be required).

First, thanks to Paul Bland of Public Justice for a tip on two interesting reads on binding mandatory arbitration: an article advancing the case for bma in securities cases, and an article scrutinizing bma's appropriateness when applied to parties of unequal bargaining power, giving special attention to bma's impact on large, complex, and class action claims.

Next, moving from the bigger policy questions to the practical question of what to do once you've already been sucked into bma, thanks to Daniel de Bonis at Public Citizen's WatchDog blog, who offers this informative post, and cites to CreditCards.com's 6 tips for dealing with binding mandatory arbitration.

Happy reading!

Clearly this obscure racist law has sat on the books without notice for quite some time. But I consider it a marker of both how far we've come and how far we still have yet to go that this law managed to survive (albeit in technicality only) for so long.

What do you think? How do you think the existence of laws like this affect our perception of the legal system?

Update--While I'm at it, I might add that while overtly anti-Latino ordinances are being taken off the books, the racial overtones of many anti-immigrant laws and policies keep this sentiment alive. For starters, check out: Immigration 101 and MALDEF's publications on anti-immigrant ordinances.

Judge Stanwood Duval is the same judge who in February found that, despite signs of clear wrongdoing, the Corps of Engineers could not be sued for flood control projects gone wrong. But this case is different from the February claim because the channel at issue, the Mississippi River-Gulf Outlet, or MRGO, was "clearly a ship channel and not a flood control project."

From his opinion:

"The United States should not be immunized for a tort which occurred from an activity unrelated to a flood control project... Taken to its logical conclusion, such a policy would yield absurd results." [Read the article here]

(Thanks to CJ&D for the alert)

I consider it very unfortunate that a prime example comes from Senator Obama’s Fox interview, wherein he touted his support for tort “reform” as an instance in which he transcended party politics. One assumes he is referring to his vote in favor of the Class Action Fairness Act (go here to see why CAFA is no good for middle class Americans). Chris Wallace asked Senator Obama:

On some issues where Democrats have moved to the center… you stay on the left and you are against both. And so people say, "Do you really want a partnership with Republicans, or do you really want unconditional surrender from them?"

To which he responded:

No, look, I think this is fair. I would point out, though, for example, that when I voted for a tort reform measure that was fiercely opposed by the trial lawyers, I got attacked pretty hard from the left.

In general, Senator Obama was characteristically diplomatic during the interview. Maybe the folks over at Fox are a little disappointed that Obama did not give them much of a show, but I think they'll soon be pleased to see that the way he handled this opportunity actually played into their agenda.

The fatal flaw in Obama's response is that it characterizes a vote for tort “reform” as a refusal to cave in to those "trial lawyers" (and by proxy the Dems, I guess)--a common trick used to subsume the relevance this issue has for ordinary citizens who just want to live in safety from dangerous products, fraud, and unnecessary injury.

Yes, trial lawyers make a living off of successful lawsuits. So does the defense bar--actually, the defense bar often makes money either way a trial gets resolved. But with respect to tort "reforms" that eliminate or severely limit a person's right to get into court in the first place or to obtain adequate compensation, or to otherwise hold a wrongdoing corporation accountable, much more is at stake than lawyers' fees...We're talking about the rights of regular people not to be defrauded, discriminated against, unlawfully harmed, etc., and our ability to enforce our rights through the civil courts.

So all that to say we’re severely missing the point if we think of Obama’s vote for CAFA merely as an ideological divergence from the majority of his Democratic colleagues. Indeed, most Republican voters would be just as freaked out as their Dem counterparts, about tort “reform” and what it does to their rights. Just read the insights of conservative civil justice activist Jordan Fogal for some enlightenment on this. If we all knew the extent to which tort “reform” affects our lives as consumers, employees, and citizens who want to live a safe and healthy life, none of us would be in favor of it. Unfortunately, this isn't discussed very much, especially not in the mass media.

In the same Fox Interview, Obama said he wants to "do what works for the American people." In another speech he added that "people want some help in stabilizing their lives... and that's what we should be talking about today." I'd suggest then, that the Senator start talking about strengthening the civil justice system and stop talking about the mistakes of his past votes for harmful tort "reform".

And because Obama embraces a politics of listening to constituents and has spoken at length about the importance of regular people feeling like their voices are heard, it is very important that we pay attention to things like this, voice our concerns about them, and observe whether this makes any impact at all on how our legal rights are discussed.

See Edwards for Tort Reform?

In Business Week we learn that Citigroup is near settlement of a gender class action suit against its Smith Barney division, brought by female financial advisers alleging discrimination in "compensation and business opportunities."

Their lawyer says:

“When you spend hundreds of millions of dollars in public money on something you know the developer is never in a position to deliver,” Mr. Locker said, “and government bodies take votes and appropriate hundreds of millions of dollars of taxpayer money, which is in short supply, based on the promise of affordable housing and jobs, and it’s not going to be built in the statutory 10 years, it’s really a fraud on the public.”

For more on the Atlantic Yards controversy, visit here.

"They fired me for doing what the law says is the right thing to do," Cooper said. "Is it any wonder that no one spoke out all this time about the largest embezzlement case in D.C. history? Of course not. Who would dare speak? It's a culture of corruption -- to look the other way and act like you don't see it."

The article tracks what has happened to these former employees since being fired. One has filed a lawsuit. Can you blame him? Read the article and determine for yourself.

In a nutshell, KBR sent American workers into a toxic workspace in and around "a substance so dangerous that even limited exposure greatly increases the risk of cancer." Many of the workers got sick and are suing KBR for failing to provide adequate protective gear. KBR wants to hide from this lawsuit, under an antiquated law that immunizes employers from employee lawsuits. But the company may have trouble doing this thanks to their stealth efforts to dodge hundreds of millions of dollars in Social Security and Medicare taxes by making it look like these workers weren't their direct employees. Read the details here.

Last week, Republicans blocked a fair pay bill that would effectively overturn a flawed ruling by the Supreme Court in a wage discrimination case, Lilly Ledbetter v. Goodyear Tire and Rubber Co. The measure was designed to bring the law in line with Congressional intent of Title VII of the 1964 Civil Rights Act, the Court's own precedents, and restore fairness to the workplace.

For nearly 20 years, Lilly Ledbetter was paid less than men with less seniority than her as a supervisor at a Goodyear plant in Alabama for doing the same job. But as soon as she received an anonymous note that made her aware of the discrimination, Ms. Ledbetter filed a complaint with the Equal Employment Opportunity Commission. A federal court agreed Ms. Ledbetter was being discriminated against and a jury awarded her more than $3 million in damages and back pay before the judge reduced the amount to $360,000 due to a damages cap prescribed by the law. But the Supreme Court in a 5-4 decision ruled that Lilly Ledbetter filed her claim too late and was not entitled to compensation.

The 1964 Civil Rights Act prohibits workplace discrimination on the basis of race, sex, creed, disability, age, but also requires that a plaintiff file a complaint within the 180 days “after the alleged unlawful employment practice occurred.” For decades, the Supreme Court and other courts understood this provision to mean that employees could sue within 180 of receiving from their last - not just their first - discriminatory paycheck, since each check represented a related yet distinct instance of discrimination.

Justice Samuel Alito, however, disagreed with that interpretation. Writing for the majority, Justice Alito argued that Ms. Ledbetter should have filed her suit with the EEOC within 180 days of the original decision to pay her differently. “Current effects alone cannot breathe life into prior, uncharged discrimination,” declared the Justice. Apparently, it did not make much of an impression on the conservative bloc on the Supreme Court that pay discrimination often occurs in small increments across time and the secrecy surrounding salary pay in the workplace makes it nearly impossible to sue as soon as a worker receives her first discriminatory pay check as Justice Ruth Ginsburg noted in her dissent.

The Ledbetter Fair Pay Act sponsored by Senator Ted Kennedy would have simply restored anti-discrimination law back to its pre-Ledbetter status. But even the status quo was too radical for certain pro-business hardliners in the Senate. {Keep Reading}

Um, yeah, that's what these guys tried to do. They couldn't, so they pursued justice through the civil courts.

From Newsday, a lawsuit reminiscent of Maxed Out, the movie and the book. The gist: credit card holders sued a bunch of banks, including Bank of America, Capital One Bank, J.P. Morgan Chase & Co., Citigroup Inc., Citibank, Universal Bank and MBNA America Bank, alleging collusion to universally impose pre-dispute binding mandatory arbitration on credit card holders. The class action plaintiffs sought a court order telling the banks to stop imposing bma on consumers (injunctive relief), invalidating those that are already in force, and ordering the banks to withdraw any current arbitration actions raised under these binding mandatory arbitration agreements.

These consumers assert that by conspiring to impose binding mandatory arbitration on consumers, the banks inflicted anti-trust injury. They're basically saying that the credit card companies killed market-based competition amongst these big card companies, limited consumers' choice by eliminating their ability to shop around for non-bma cards, and diminished the quality of the service provided by reducing an effective incentive for banks to treat customers fairly.

Well, the class action was filed in 2005, then squashed, and now it has been reinstated by the New York State Court of Appeals.

Civil justice system: one point.

This would have closed the debate and moved the bill forward for a vote on its passage. That means the debate on this bill continues and we've lost the opportunity to commemorate Equal Pay Day (yesterday, April 22) with passage of a law that restores our rights against discrimination and economic inequality. Why did this cloture motion fail? Why would anyone oppose equal pay for equal work?

One answer: this is tortdeform at work, in action, right now. It reflects both misinformation about what the law would do, and a general disregard for the rights at stake here.

McCain who was on the campaign trail rather than on the Hill for this vote,had this to say:

''I am all in favor of pay equity for women, but this kind of legislation, as is typical of what's being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems,'' the expected GOP presidential nominee told reporters. ''This is government playing a much, much greater role in the business of a private enterprise system.''

This appeal to the marketplace over human beings' rights not to be discriminated against or otherwise harmed by corporate wrongdoing, is a present-day example of tortdeform rhetoric at work. These are the types of arguments used on a regular basis, to justify taking away our rights to hold corporations accountable when they do terrible things to people, like discriminate against employees on the basis of gender, race, disability, age, sexual orientation, etc. To make matters worse, this bill is not a radical new law. McCain is essentially saying that a modest bill that simply restores the state of the law prior to July 2007, when the Supreme Court had it's Supreme Corp hat on, steps on the toes of big business. Therefore, Republican Senators in opposition to the bill have voted to drag the process on out and do all they can to stall or quash its passage.

But contrary to McCain's claim, opponents to this bill are NOT in favor of pay equity for women. They are in favor of profit increases and legal immunity for big corporations. This callous disregard for human injustice is only further butressed by McCain's assumptions--rife with both sexist undertones and extreme misinformation--about what the "real" problem is with unequal pay: women are just not as qualified as men. He says:

''They need the education and training, particularly since more and more women are heads of their households, as much or more than anybody else,'' McCain said. ''And it's hard for them to leave their families when they don't have somebody to take care of them."

The conspiracy against our rights is at work right now. We see it today with the failure of a cloture vote that would have moved us toward restoring our laws and strengthening our civil justice system so that people can actually enforce their rights under the law. We see it with an at best misinformed Senate, that has bought into the lies of the tort "reform" lobby.

Also, as Harry Reid--who co-sponsored the bill with Republican Arlen Specter-- points out, this should be an issue of justice and not party line:

“There is no reason for the Fair Pay Act to be a partisan issue. I strongly urge my Republican colleagues to join Democrats in sending a strong and powerful message – that in America, discrimination will never be tolerated and justice will always be blind. But no matter the result today, that message – and our commitment to those enduring values – will continue.”

Now is the time for informed and engaged citizens to start standing up for our legal rights and demanding more from our representatives, regardless of our party affiliation. This requires recognizing tort "reform" lies and calling attention to the truth--truths like the fact that people should be paid equally for equal work, and when they're not, they shouldn't be out of a remedy because of some loophole that benefits big corporations and leaves ordinary people shafted.